Filed 4/19/22 P. v. Hix CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Michael Hix pleaded no contest to second degree robbery and admitted he personally used a firearm in the commission of the crime. Defendant appeals the trial court’s denial of the Department of Corrections and Rehabilitation’s (CDCR) recommendation under former Penal Code[1] section 1170, subdivision (d)(1) (section 1170(d)(1)), that the trial court consider recalling defendant’s sentence and resentencing him. He argues the trial court denied him due process when it denied the request without notice and an opportunity to be heard and abused its discretion in denying the request. After defendant filed this appeal, the Governor signed Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Assem. Bill No. 1540) (Stats. 2021, ch. 719) into law. In light of this new law, the Attorney General concedes defendant is entitled to a reversal and a resentencing hearing consistent with the provisions of Assem. Bill No. 1540. We accept the Attorney General’s concession and shall reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2015, defendant pleaded guilty to robbery (§ 211) and admitted he personally used a firearm in the commission of the crime (§ 12022.53, subd (b)). The trial court sentenced him to two years in state prison on the robbery charge and 10 years for the firearm enhancement.

The substantive facts underlying this conviction are not necessary to our resolution of this case on appeal and are summarily recounted here. Defendant and a codefendant broke into a home occupied by two victims. Defendant brandished a gun, took a phone from one of the victims, and ordered them into a bedroom. The two stayed in the house for two hours. When police arrived, the owner of the home reported several guns, the keys to his cars, and several other items were missing from the home.

In March 2021, CDCR sent San Joaquin County Superior Court a letter pursuant to former section 1170(d)(1) recommending the trial court consider recalling defendant’s commitment and sentence for his 2005 convictions and resentence him. CDCR urged the trial court to consider the effect of the amendment to section 12022.53, subdivision (h), which became effective January 1, 2018, had on defendant’s sentence. That amendment provided the court with a new discretion to strike or dismiss a personal use firearm enhancement under section 1170(d)(1) in the interests of justice under section 13858.

Without providing defendant with notice or an opportunity to be heard, the trial court issued a written order denying the request on April 29, 2021. The court stated, “This case involves a negotiated plea where [defendant], along with defense counsel, and the district attorney, all agreed to the sentence imposed. [¶] The Court has reviewed the file and decided not to exercise its discretion to strike the enhancement. [¶] The request to recall [defendant’s] sentence is denied.”

DISCUSSION

While this appeal was pending, the Governor signed Assem. Bill No. 1540, which, effective January 1, 2022, moves the resentencing and recall provisions of former section 1170(d)(1) to new section 1170.03 (Stats. 2021, ch. 719 §§ 1-7). The People correctly concede this matter must be remanded to allow the trial court to reconsider the request in light of the recent statutory amendments.

Initially, we note, in its findings and declarations, the Legislature explicitly indicated its intent that these resentencing proceedings, “apply ameliorative laws passed by this body that reduce sentences or provide for judicial discretion, regardless of the date of the offense or conviction.” (Assem. Bill No. 1540 Stats. 2021, ch. 719, § 1, subd. (i); People v. Pillsbury (2021) 69 Cal.App.5th 776, 788 [“when the Secretary recommends recall and resentencing under section 1170 (d)(1), trial courts have the authority to resentence defendants at any time based on an ameliorative change in the law giving courts discretion to strike or dismiss enhancements under section 1385, subdivision (a), even after the defendant’s judgment is final and even when the original sentence was the product of a plea agreement”].)

Section 1170.03 adds a number of requirements to the recall and resentencing process, including notice, appointment of counsel, a hearing, and a statement of reasons for the ruling on the record. (§ 1170.03, subds. (a)(6), (a)(7), (a)(8) & (b)(1), added by Stats. 2021, ch. 719, § 3.1, subd. (a)(6), (7) & (8).) The new statute also provides that where, as here, the recall and resentencing recommendation is made by the CDCR, “[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18.” (§ 1170.03, subd. (b)(2), added by Stats. 2021, ch. 719, § 3.1, subd. (b)(2).) Here, the trial court’s summary denial of CDCR’s recommendation for recall and resentencing did not comply with these new statutory requirements.

Because the judgment as to the CDCR’s recall and resentencing petition is not final and the new section 1170.03 took effect January 1, 2022, we remand the matter to the trial court for further proceedings. (People v. Cepeda (2021) 70 Cal.App.5th 456, 471-472.) We express no opinion on the merits of CDCR’s resentencing recommendation.

DISPOSITION

The April 29, 2021, order declining to recall defendant’s sentence is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion.

\s\ ,

BLEASE, Acting P. J.

We concur:

\s\ ,

HULL, J.

\s\ ,

RENNER, J.

[1] Unspecified statutory references are to the Penal Code.